People v. Moody

• Decision Date: 16 July 1993
• Citation: 195 A.D.2d 1016,600 N.Y.S.2d 581
• Parties: PEOPLE of the State of New York, Respondent, v. Kirk D. MOODY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 581

600 N.Y.S.2d 581

195 A.D.2d 1016

PEOPLE of the State of New York, Respondent, v. Kirk D. MOODY, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

July 16, 1993.

Gerald T. Barth by Randi Juda, Syracuse, for appellant.

William J. Fitzpatrick by Gary Kelder, Syracuse, for respondent.

Before CALLAHAN, J.P., and GREEN, LAWTON, FALLON and BOEHM, JJ.

MEMORANDUM:

We reject defendant's contention that County Court should have given an adverse inference charge with respect to a missing composite drawing of the robber, drawn from a description provided by the bank teller who had been held up. Although the drawing should have been disclosed before trial (see, CPL 240.20[1][d], the court properly considered the circumstances surrounding its disappearance. We agree that defendant was not prejudiced by its nondisclosure. The bank teller testified at trial and was subjected to vigorous cross-examination concerning the description that she had given to police officers on the day of the robbery. Further, defendant was positively identified by two other witnesses.

We also reject defendant's contention that photographs, printed from a videotape made by the bank's security camera, should not have been admitted into evidence because they were "fuzzy". Those pictures showed the person robbing the bank and were relevant and material to the question of identity. Whether the pictures were sufficiently clear goes to weight, not admissibility. Nor did the court err in granting the jury's request, during deliberations, for a magnifying glass. As the court correctly observed, use of the magnifying glass was for the purpose of enhancing the clarity of the photographs, similar to the use of reading glasses. It was not to be used for such impermissible purposes as comparing fingerprints (see, People v. Fields, 152 A.D.2d 958, 543 N.Y.S.2d 1012 affd 76 N.Y.2d 761, 559 N.Y.S.2d 951, 559 N.E.2d 645) or determining whether a handwriting exhibit had been tampered with (see, People v. Strewl, 246 App.Div. 400, 287 N.Y.S. 585 appeal dismissed 271 N.Y. 607, 3 N.E.2d 207).

We have examined defendant's remaining contentions and find them to be without merit.

Judgment affirmed.

All concur except GREEN and FALLON, JJ., who dissent and vote to reverse in the following Memorandum:

We dissent. Defendant was entitled to the adverse inference charge he requested with respect to the missing composite sketch. The composite drawing could have been of tremendous value on cross-examination by defense counsel. In our view the trial court's refusal to give the charge because there was "so little testimony" about the drawing was an abuse of discretion and the fact that the drawing was made and the People failed to produce it was sufficient to entitle defendant to the adverse inference charge (cf., People v. Morillo, 181 A.D.2d 532, 582 N.Y.S.2d 1 lv. denied 80 N.Y.2d 835, 587 N.Y.S.2d 920, 600 N.E.2d 647).

We further conclude that the failure to give the requested...